Australia takes the low road on asylum seekers

Back from its winter recess, the Australian Parliament has now passed the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2011 which was first introduced to the Parliament in September last year as a response to the High Court's decision striking down the so-called Malaysia solution.

Ten months ago the stand-off between the Government and the Opposition over this bill related to the choice between Malaysia and Nauru as prospective offshore processing countries.

The Coalition wanted Parliament to insist that any country eligible for designation as an offshore processing country would be a signatory to the Refugees Convention. The Government wanted to retain the liberty of designating Malaysia immediately as an appropriate offshore processing country.

The Houston Expert Panel has provided the necessary political circuit breaker. The Coalition dropped its insistence that any potential offshore processing country be a signatory to the Convention. The Government dropped its insistence that Malaysia be pursued immediately as an appropriate offshore processing country.

The Government and Coalition remained in agreement that the Parliament should legislate to lock out the High Court from scrutinising the human rights protections offered in any offshore processing country. No major political party wants the High Court scrutinising future offshore processing arrangements in the same way that the High Court was able to strike down the Malaysia deal which the Coalition still describes as 'abominable'.

The panel was in agreement with the High Court that last year's Malaysia deal fell well short on human rights protection.

On Tuesday, Philip Ruddock, the chief architect of the Pacific Solution Mark I congratulated the panel for its competent outlining of the issues and options. He then put this challenge to Government:

What they are saying is that this Government's proposal is for mandatory detention in Nauru and Manus Island indefinitely until a place can be found after others in the queue have been accommodated. If this measure is going to work this government has to make it very, very clear that, for all of their statements that they would walk away from mandatory detention, they are now implementing indefinite mandatory detention offshore.

If people understand that, it may have the impact that the government seeks. But you cannot be unambiguous about the language you use. The message has to be clear not only to the people smugglers but also to their client base.

Thus the need for locking out the High Court. Nauru will only work as a deterrent if the package includes indefinite mandatory detention and protracted waiting before processing and resettlement. The Pacific Solution Mark I depended for its success on John Howard's bluff that refugees from Nauru would never end up in Australia. Mark II will depend on Julia Gillard's bluff, and that of her successors, that refugees in Nauru will have to wait there for many years.

All major political parties now hope they can confine people in Nauru for years on end without any prospect of court supervision and without any need for Parliament to revisit the matter. Scott Morrison, the Shadow Minister for Immigration, told Parliament on Tuesday:

These amendments ensure that, case by case, countries to which offshore arrivals are sent will be approved by this parliament. This means that a very heavy burden of responsibility now falls on this parliament. Previously there were the section 198A protections in the Migration Act. These were introduced by Mr Ruddock when he was Minister for Immigration to ensure that people who were processed offshore had legally binding protections.

If anyone doubts that those protections were legally binding, they need only look at the High Court decision of last year which proved that they were legally binding because the Malaysian people-swap — that abominable arrangement — was ruled out by the High Court on the basis of the insufficient nature of the declaration which made Malaysia, and particularly the people-swap arrangement, available to the government.'

Morrison, Ruddock and most of their parliamentary colleagues on either side of the aisle proceeded to vote to abolish these safeguards.

The Government has accepted the panel's recommendation that 'decisions in relation to how (asylum seekers) in Nauru would be processed would be determined by Australian officials in accordance with international obligations'. If people are to be detained indefinitely as Ruddock says, the Australian officials will need to institute a 'go slow' in processing refugee claims.

Though Parliament has done all it can to exclude the High Court, the Constitution (s.75(v)) which is beyond the reach of politicians (even when they are in panic mode) does provide the High Court with jurisdiction to order Australian officials to perform their legal functions. And if the deliberate 'go slow' by the bureaucrats is aimed at detention stretching into years rather than months, the High Court could well be asked to determine whether the initial detention of people arriving by boat is indeed punitive (as of course it is intended and trumpeted to be).

Under our Constitution, punitive long term detention is the sole preserve of the courts. It's called the rule of law and the separation of powers. If the Australian officials on their years long 'go slow' are not exercising any functions under Commonwealth law, there could well be questions about the legitimacy of the expenditure by the Commonwealth in the absence of specific statutory allocations for long, slow punitive detention. The High Court opened this door in the recent school chaplains' case.

The deliberately punitive regime will run into further problems once a person is proved to be a refugee. Now that Nauru is a proud signatory of the Refugees Convention, it is bound to provide proven refugees in their territory with a full suite of rights including 'the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment'; 'the same treatment as is accorded to Nauruan nationals with respect to elementary education'; 'the same treatment with respect to public relief and assistance as is accorded to Nauruan nationals'; social security; and 'travel documents for the purpose of travel outside Nauru, unless compelling reasons of national security or public order otherwise require'.

If Ruddock is right, Australian officials will have to start schooling their Nauruan colleagues in breaching the provisions of the Refugees Convention before the ink is dry on Nauru's ratification.

I am one Australian who will not be holding his breath waiting for a revised Malaysia deal which measures up to the human rights protections recommended by the Houston panel. I still can't see our immediate neighbours like Malaysia and Indonesia being much interested in a regional processing agreement for all asylum seekers arriving in the region. The Panel with its savvy international experience felicitously noted: 'Going beyond principle to addressing how greater regional cooperation would work in practice, in the immediate and longer term, is less travelled territory but critically important.'

While waiting to open up that virgin territory, let's hope the bluff works and the boats do stop coming. If people come in any numbers, we are going to find ourselves in a dreadful imbroglio in Nauru for years to come. In five years time, it might not just be the Greens in Parliament who look back and say that it would have been decent for Ruddock and his colleagues in 2012 to retain the minimum human rights protections which he negotiated with Kim Beazley back in 2001.

We have reached a fork in the road between decency and deterrence. As a nation we have taken the low road, inviting the newest signatory to the Refugees Convention to emulate our indecent behaviour.

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Fr Brennan will appear tonight as part of Eureka Street's A Discerning Conversation With Kevin Rudd, held to celebrate the magazine's 21st birthday. Watch the live stream here

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Fantastic, finally a good solution which will safe lives! Beat Odermatt | 17 August 2012

Can anyone tell me why Australians (some at least) are so paranoid about asylum seekers? I was brought up in a very monocultural city; the 'others' were not overseas people but Catholics. Then we saw a sprinkling of Colombo plan Asians & the big influx of DP's (white though some were barely such as the 'Balts'). Next came the big wave of Vietnamese, then Chinese after Tianim Sq & a steadily increasing number of others from India etc. We coped. But this hysteria about 'asylum seekers' suggests to me that, whisper it gently, underneath it all we are still very racist. I am ashamed. rosemary west | 17 August 2012

Unless the government gets on with a regional strategy we are going to look even worse in the future than we do now.
What we are afraid of about asylum seekers deserves deserves rigorous explication. What unexpressed fears are politicians tapping into and why do they send otherwise fearless politicians into such a principle free funk.Robert Smith | 17 August 2012

It's disgraceful. And Labor's about-face on Nauru shows once and for all that they are completely lacking principle.Georgina | 17 August 2012

Frank Brennan's article barely conceals his anger. Rarely in our national history have so many politicians and policy makers failed so badly. How did we get to the point where we as a nation treat certain classes of asylum seekers so badly - indefinite mandatory offshore detention without access to courts, all because 'they' arrive by boat, not plane. The idea is to punish 'them', men women and children who do not deserve punishment and use their indefinite misery to deter others. It is simply morally objectionable, saying as others have done in history that the ends justifies the wrongful means.
Indefinite punishment for seeking asylum? Expressions come to mind like ghetto, failure of imagination, weakening the precious rule of law, an ugly new (old) politics of exclusion and faux rage, of yielding to, and in the case of some politicians exploiting and even harnessing the fears of the mob. Couldn’t the same expenditure create better centres further from home, where refugees get processed fairly and quickly? and better alternatives for those who do arrive by boat?
We are one of the world’s great countries – fair, prosperous, safe. We should act accordingly.
The new burden on people who speak up in this debate, such as F Brennan, D Manne, Pamela Curr, J Burnside, ASRC, Rachel Ball, Jessie Taylor, to name a few, is to keep pushing the debate to a better practical solution. We who are appalled are probably only near the start of a long struggle and we had better get better organised.
Julian McMahon | 17 August 2012

Good morning, Fr Frank. No-one, it seems, can ever get it right. This latest effort represents our (Australia's) "indecent behaviour". Perhaps with your experience and ability to detect the flaws in most attempted solutions to this terrible human problem, it could help us all if you could outline the solution. Surely, if you can detect the flaws, you have an understanding of what constitutes that flaw and what would correct it.It would also be very helpful if the definition of what constitutes a refugee could be clarified. Does it , for instance, include non-Tamil Sri Lankan citizens not under persecution by their government who simply want to live in Australia and decide to come here for a better lifestyle with social benefits that their own government does not provide. Does refugee status apply to Afgani and Iraqui citizens living without persecution in Indonesian villages (for some years apparently in some cases) who eventually pay a people smuggler for a transit to Australia. Is not Indonesia effective asylum for these people? There are, of course, those people who have suffered greatly and whose lives are threatened by regimes and I do not suggest that we do not offer asylum to such people. Such persons already have assessment procedures available to them and from which Australia accepts an internationally approved quota. I clearly need help, Frank,to understand Australia's local issue. Please, at some time, give us your opinion on the solution rather than on flawed policy. God Bless, and keep up your good work. john frawley | 17 August 2012

Thank you Frank for a lucid and ethical overview of the mess the government has got itself into over the boat people. The government's line, "I have to be cruel to be kind", is the worst type of political cynicism. The Green's amendments to the Act were humanitarian and practical measures that could have ameliorated this bad act - if only a bit. I look forward to a challenge in the High Court to the government's 'go-slow' on non-court sanctioned incarceration. Let's hope it comes sooner rather than later. John Edwards | 17 August 2012

I'm feeling sick as I recall the words of Australias anthem. so meaningless and flippant.
for those who've come across the sea,we've boundless plains to share
with courage let us all combine to advance Australia fair
To play with peoples lives, lives that have already suffered severely, with this new option of deterence is indeed the 'low road'. And our politicians think that this new solution will appease the voters. It does not appease this voter. I am more determined than ever to support humane and compassionate treatment of those in need who come to our shores.
Jo dallimore | 17 August 2012

Thank you Frank for being a voice of compassion amidst all the indecency that is being thrown around by both sides of Parliament. Let's hope that the High Court will step in once more.Patrick Rodgers | 17 August 2012

Many thanks, Fr Frank, for your analysis, and in particular for the observation regarding the constitutional powers of the High Court to order officials to comply with their legal obligations, although of course someone has to take up that action after non-compliance has already been found, as I am ashamed to say, I fear it will. The fundamental moral issue for me is the policy of punishing the desperate to deter other desperates. Of course, all parties will spin it otherwise, in the belatedly discovered concern for "saving lives", which sounds much better than "protecting our borders" (from what?). Unfortunately, despite the very good woirk of the Houston panel, they have done a grave disservice by not including arguments for or against on-shore processing (including Christmas Island, which has been "excised" from the migration zone and hence treateed as if it was offshore, when it is not. THere are cetailnly difficulties in onshore processing, including theinevitable extension of the boat voyages, but surely not beyond the nation's wits - just beyond its will, apparently. The report also did not discuss the prospects for interim arrangements with Indonesia, funded and perhaps staffed by us,under a treaty or at least a diplomatic MOU, for establishing processing centres there, of similar status to those elsewhere. Dennis Green | 17 August 2012

Was it Kevin Rudd who mentioned "the race to the bottom"?
The ALP is accused of being lacking in principle. That isn't quite fair. Some - a majority perhaps - yes, but not all.
And the over-riding principle of that majority is - WHATEVER IT TAKES TO HOLD ON TO POWER.
I notice a certain reticine to give The Greens credit for sticking to their principles on refugees and asylum seekers. I wonder what that silence bespeaks.
Are the Government and the Coalition trying (within the limits of democratic double-dealing in Australai) to sideline The Greens?
Do they aspire to a dichotomy like the US where political spoils appear to be limited to two major political treasure chests, one red and one blue, but both empty of ethical principles?Uncle Pat | 17 August 2012

So disillusioned and sad am I, that I can no longer bear to follow the uninformed, politically biased media and the crass politicians defiling our democracy and human values.I am damaged by the politics over people.

Close involvement for a decade as volunteer at the Romero Centre in Brisbane su[porting people who survived the "Pacific Solution" Mark I was emotionally draining. My heartbreak at what is now unfolding is total. I feel as hope-less and powerless as the asylum seekers themselves. Most former refugees, now fellow citizens, are too broken and retraumatised to even protest and lobby for the lives of friends and family.

Frederika Steen | 17 August 2012

Spot on, John Frawley.

And I feel the need to point out once again that it is open to Catholics genuinely concerned for refugees to advocate the current government's solution, or to advocate the Coalition's revived "Pacific Solution". I don't agree with the Gillard government's solution, mainly because it has shown time and again it couldn't even run a chook raffle competently, let alone something as complex as managing our borders in the modern geopolitical landscape. The boat arrival surge of the past few days is proof that refugees and so-called "smugglers" are of the same opinion.HH | 17 August 2012

I say we start a campaign where at football matches, and particularly as finals approach, when the anthem is played groups of people sit together wearing T-shirts with the following words of our anthem and sing loudly and with pride “ For those who've come across the sea, we’ve boundless plains to share with courage let us all combine to advance Australia fair.”terry fitz south brisbane | 17 August 2012

Fantastic, finally a good solution which will safe lives! Beat Odermatt | 17 August 2012

Seems we are very upset at asylum seekers drowning on our TV screens and in our newspapers but their being shot, bombed, decaptitated far away in Pakistan is OK. The hypocisy of the crocodile tears in parliament and the recent euphoria at stopping boats and thus drownings in our waters, beggars belief. Thank goodness we have those like you Frank to point out the deficiencies in law, in basic justice and in upholding our international onligations. But who is speaking for those dying because they have no queue to join?Trisha | 17 August 2012

Beat, while the politicians were on winter break 1.26 million kids under 5 died of starvation and war and preventable disease while the government allowed another group of 65 refugees to drown.

Marilyn | 17 August 2012

I think that Frank has forgotten about the precise bluff in Howard's Pacific Solution - that detention would not extend beyond six months. Gillard's decision that boat people may be held in detention for years is more a boast thsn a bluff - but it will work. The PNG bishop (a national - I don't know his name) who spoke out today to condemn Australia's indifference to his country's sovereignty needs to be heard with respect. Claude Rigney | 17 August 2012

Thank you Frank ..and also to Rosemary, Robert, Georgina, Julian, John Edwards, Jo, Dennis, Frederika, Trisha and Marilyn. You have all said what I wish to shout from the rooftops but neither have the wit nor the art to articulate. I am ashamed to be an Australian!Tony W | 18 August 2012

I have just been told that some people have to be sacrificed because of racism in the community that was started by the two racist boat people who are our supposed leaders.

Get it off the agenda, be viciously cruel.

But John Menadue is still whining about the dirty illegal Malaysia deal and blaming the Greens because it was illegal.Marilyn | 18 August 2012

Some readers have been suggesting that I have simply been critical of government proposals without constructively putting suggestions. I did of course publish my detailted talk on the search for a coherent, workable and moral solution on 25 June 2012. See: http://www.eurekastreet.com.au/article.aspx?aeid=32044. That piece was then submitted to the Expert Panel who were to meet with me to discuss possibilities. But PM&C twice cancelled the meeting. Today I have published this piece “There is a more ethical way to stop the boats and prevent deaths at sea”:
http://www.abc.net.au/religion/articles/2012/08/20/3571759.htm. I remain hopeful that the boats will stop, but I am not at all confident that we are adopting an ethically appropriate way of doing so. The fear and indecent haste of the government members last week precluded all prospect of rational discussion about the workability of the “no advantage” test which I have no doubt will prove to be incoherent.

Frank Brennan SJ | 20 August 2012

The very notion that any refugee has an advantage of any kind in life is ludicrous.
Doug Cameron opposed but voted for the lies and nonsense being peddled but claims he had to.
Melissa Parke abstained.
He could have.
And why do we want to stop boats? It's a free ocean and not our belonging.Marilyn | 21 August 2012

Father Frank.
I am sorry, but I cannot see how "detention in Nauru and Manus Island indefinitely until a place can be found after others in the queue have been accommodated" means that "Australian officials will need to institute a 'go slow' in processing refugee claims". A long queue takes a long time to process - that does not mean that the queue processors are deliberately delaying the processing. Bob | 21 August 2012

bob, any detention is illegal.Marilyn | 21 August 2012

Bob, as we are the only nation on earth who claims to have knowledge of a refugee queue surely by now even the most moronic clown would understand that the yarn is a flat out lie.Marilyn | 22 August 2012

I cannot understand why everyone assumes the problem is deterrence. The problem is our humanity or failure to act humanely to refugees fleeing terror. I am losing patience with those who seem to have made an industry out of this. Whether for political capital or grandstanding do-goodery it is all the same. People still die in boats and we are still shameful people.graham patison | 23 October 2012

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